By Vaidya Gullapalli
On Monday, a caller to the Brian Lehrer Show expressed his discomfort with the current debate about recent bail reforms in New York. The caller, a lawyer from near Lake Placid, New York, had this to say:
“I think the biggest problem that bothers me the most with this is that it’s not intellectually honest … What we’re talking about here is not bail. It’s preventive detention and we ought to bring it out and debate it.”
Preventive detention, the incarceration of someone because of a belief they pose a threat to others, was, not so long ago, a disfavored idea. A generation ago, wrote Sandra Mayson, a law professor at the University of Georgia, in 2018, “critics argued that no probability of future crime was sufficient to authorize preventive detention.”
In 1987, the U.S. Supreme Court considered the constitutionality of pretrial preventive detention in United States v. Salerno. Mayson described how “Justice Rehnquist, writing for the majority, concluded that none of the constitutional provisions invoked by the defendants categorically prohibits preventive detention.” Nevertheless, the Court affirmed that “[i]n our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.”
Despite the U.S. Supreme Court’s insistence on pretrial detention as a “carefully limited exception,” the numbers of people held pretrial has ballooned. The abolition of cash bail has been a high 
priority. But for some, that has meant opening the door to so-called “dangerousness” assessments.
In a letter to Democratic Governor Andrew Cuomo and political leaders yesterday, over 100 groups in New York argued that the state should not capitulate on recent bail reforms to allow for judges to order pretrial detention on the basis of these assessments.
“Adding ‘dangerousness’ to the bail law would codify racial profiling into pre-trial detention decisions,” the letter reads. “It is an invitation for bias … People of color would overwhelmingly bear the brunt of this misguided approach. According to a 2016 study, Black people were twice as likely as white people to be misclassified as ‘high risk.’ White people, meanwhile, were misclassified as low risk 63.2 percent more often than Black people,” reads the letter, as reported by the New York Daily News.
In a forthcoming essay, for the Law and Political Economy blog’s ongoing series on money bail, Mayson questions the legitimacy of a pretrial preventive detention system. “Absent money bail, we must make intentional decisions about when to restrict a person’s liberty to mitigate risk,” she writes. “But what degree of risk—of what kind of harm—is sufficient to justify depriving a person of liberty? Is the answer different for an accused person than for anyone else? As I have argued elsewhere, there is no reason that it should be different. If we take the presumption of innocence and prohibition on pretrial punishment seriously, there is no reason that the threshold of risk that justifies detention should be any different for a defendant than a member of the public at large. If this conclusion is uncomfortable, it should lead us to ask whether we are in fact willing to value the liberty of accused people in the same way we value our own.”
It is worth saying again: To be sent to jail in America is punishment. Jails are sites of suicides, overdose deaths, violence (including by government employees), and sexual assault. And that is in addition to the separation from family, children, parents, schools, home, and work. The emphasis on money bail should not obscure the larger goal. A system of pretrial detention that sorts on the basis of money is not the only problem. The problem is incarceration and in America, it happens all the time, to millions of people.
Mass pretrial detention is an end run around the presumption of innocence. For punishment purposes, it brings arrests closer to convictions. New York’s bail reforms, over the past many years, have been steps away from this, lowering pretrial incarceration while crime rates continued to drop. The reforms that went into effect this year are another step in this direction. To roll them back and institute a new system of pretrial detention is not the answer.
Such a system gives enormous power to remove people from free society and imprison them to one set of actors: the police. Is it any wonder they are among the biggest opponents of recent bail reforms in New York? Absent a default of pretrial release, the scale of arrests shapes the scale of jail admissions. A lengthy criminal code, stuffed with charges that criminalize poverty and need, has given officers the power to exercise control over people based on neighborhood, race, and class. Any restriction on pretrial detention restricts that police power.
In New York city, where the blowback against bail reform has been furious and sustained, not a single police official is an elected official (Sheriffs in some upstate counties are elected). Yet these officers view themselves, not just as enforcers of law, but as arbiters of what the law should be.
They also want to both represent the power of the state yet take umbrage at criticism that is too pointed or is profane. Contrast police reactions to the use by protestors of the phrase “F*** the police,” in a demonstration two weeks ago, going so far as to claim it incited the shooting of officers a week later, with the language of a police union head, who described the man arrested for the shootings as a “mutt.” This is a phrase that appears to be part of the NYPD vocabulary. Also consider police union officials declaring “war” on New York City Mayor Bill de Blasio.
The most generous interpretation of law enforcement opposition to restraints on pretrial detention is that law enforcement are more focused on what they view as their duty to protect than on people’s rights and freedoms. Implicit in this, however, is that police and prosecutors see themselves as protecting a group of people separate and apart from those who need protection from incarceration itself. This means acknowledging that law enforcement does not view protection from harm at Rikers Island and other jails across the state, as something they should deliver, or even consider.
If you believe one group of people needs to be controlled, is per se dangerous, and that social policy needs to be set accordingly (cue the Michael Bloomberg defense of stop-and-frisk in a 2015 tape that was recently leaked), then the encounter on the street is preordained. Similarly, a society that decides jail is a necessary means of social control will find a way to funnel people into jail. The question is whether we have ideas for safety that go beyond incarceration. A different society, one in which Black and Latinx people were not treated as threatening, and which decided healthcare, housing, and education were basic rights, would not need to define so much as criminal in order to enforce that criminalization against some people.
The point is not that the rich should be jailed the way the poor are. The point is that jail is not the path to safety. Eliminating money bail is part of the path to eliminating pretrial detention and that is part of the path to collective liberation.
Originally published in the Appeal.
Point taken that massive pretrial detention does not serve us well. Also, I acknowledge that it has been used inequitably across different demographics. I would, however, favor some acknowledgment that if the crime is a murder, rape, or other violent crime, pretrial release is not a good option.
I would make a modest suggestion. I suggest a definite set of criteria be established, and the deciding judge be blinded to the name, identity, race, gender, political affiliation…of the accused. This approach helped to equalize the gender composition of orchestras and I think it could serve as an equalizer in this setting as well.
Some may not be aware of the following, which is apparently a direct result of the order to reduce the number of prisoners incarcerated in state prisons:
https://www.propublica.org/article/california-fresno-county-jail-deaths
Interesting subject, but has nothing to do with the issue here of pretrial detention.
Quickly I think the biggest problem is a jail is set up for relatively short-term detention, not long-term. One of the people with a 1437 has come back to Yolo and his wife tells me he’s absolutely miserable because they don’t have the programs or the system set up for him that he had in prison. So even if you’re moving people who on paper are low risk for violence, putting them in inappropriate facilities is asking for trouble. But again, not the issue in this article.
It has everything to do with pretrial detention, as noted in the article that you published, above:
And, it’s an unintended (but probably predictable) consequence of the order to reduce the state’s prison population.
No.
The issue in this article is what happens to people who are arrested and charged but not convicted. The article is arguing that pretrial detention should be extremely rare.
The issue that you are raising is AB 109, realignment. That is the shift from people who have been convicted of a crime who are instead of being housed at a prison are serving their detention locally.
Those are two completely separate issues, the only commonality is that they are both ending up in the jail (at least in California).
There are always going to be people who are arrested and jailed, but ultimately not convicted of a crime.
Regarding “rarity” of arresting and jailing innocent individuals before trial, I believe that’s (already) the goal.
The issue that this article addresses is that if you eliminate cash bail and simply replace it with pretrial detention, you’ve not really moved the ball.
Which “direction” should the ball be moved?
Erring on the side of releasing those who are suspected of committing significant crimes (and/or, are a possible danger to others)?
Or, erring on the side of jailing innocent individuals?
And again, what about the conditions of jails, since there will always be some who are jailed, but ultimately aren’t convicted?
And as a follow-up question, do you believe that the system is currently jailing a significant percentage of people who have committed no crime?
As a side note, I understand that the evidence required for conviction is of a higher standard than that required for an arrest. After arrest, further evidence may be gathered and analyzed.
I personally don’t believe that the system is purposefully set-up to arrest or convict those who haven’t committed a crime, although it certainly occurs.
It’s a matter that people are presumed innocent until proven guilty, and bail and pretrial detention turn that on its head and declare them guilty until proven innocent (or at least until not proven guilty).
And there are consequences for that. People who are able to afford bail are released, they can keep their jobs, their houses, they are with their family. People in custody pretrial are more likely to take a plea deal just to get out – even if they are innocent.
That is factually incorrect, although I believe that arrests remain on record – regardless of outcome.
That may be true, and is truly unfortunate.
Then again, how many people with “jobs” and “houses” are out committing and getting arrested for (street) crimes, to begin with? Those are the people who have more to lose (and less to gain) by doing so in the first place. These are also the same people who have traditionally been receptive to “tough on crime” measures, as well.
Arrests have nothing to do with the issue of guilt or innocence. An arrest is an accusation. A person is legally innocent until the due process of law is rendered – either through a plea or a trial.
“ That may be true, and is truly unfortunate.”
It is more than just unfortunate. This is why you are seeing across the country a move away from cash bail as the determination for pretrial custody status. The question then is, how is it determined and this article is arguing that pretrial detention should be exceedingly rare.
The exact opposite of what you said, in your 11:27 a.m. comment.
Then again, an “accusation” cannot (or at least should not) be baseless. That’s why you, me, and anyone reading this isn’t already in jail.
Again, the goal is (already) to make unsupported arrests and detention rare. I haven’t seen any evidence which suggest that this isn’t (already) the case.
My comment at 11:27 had to do with consequences for pretrial detention, not the meaning of an arrest.
Are you attempting to intentionally be obtuse here?
Correction: the opposite of what you said in your 11:25 a.m. (not 11:27 a.m.), comment:
This comment is factually incorrect, and is the opposite of what you said in your 11:38 a.m. comment.